第 7 节
作者:寻找山吹      更新:2024-04-07 21:07      字数:9322
  juridical act on my part。 But the assumption of this act at the same
  time involves the admission that I am obliged reciprocally to
  observe a similar abstention towards every other in respect of what is
  externally theirs; for the obligation in question arises from a
  universal rule regulating the external juridical relations。 Hence I am
  not obliged to let alone what another person declares to be externally
  his; unless every other person likewise secures me by a guarantee that
  he will act in relation to what is mine; upon the same principle。 This
  guarantee of reciprocal and mutual abstention from what belongs to
  others does not require a special juridical act for its establishment;
  but is already involved in the conception of an external obligation of
  right; on account of the universality and consequently the reciprocity
  of the obligatoriness arising from a universal Rule。 Now a single
  will; in relation to an external and consequently contingent
  possession; cannot serve as a compulsory law for all; because that
  would be to do violence to the freedom which is in accordance with
  universal laws。 Therefore it is only a will that binds every one;
  and as such a common; collective; and authoritative will; that can
  furnish a guarantee of security to all。 But the state of men under a
  universal; external; and public legislation; conjoined with
  authority and power; is called the civil state。 There can therefore be
  an external mine and thine only in the civil state of society。
  Consequence。… It follows; as a corollary; that; if it is juridically
  possible to have an external object as one's own; the individual
  subject of possession must be allowed to compel or constrain every
  person with whom a dispute as to the mine or thine of such a
  possession may arise; to enter along with himself into the relations
  of a civil constitution。
  9。 There May; However; Be an External Mine and Thine Found as
  a Fact in the State of Nature; but it is only Provisory。
  Natural right in the state of a civil constitution means the forms
  of right which may be deduced from principles a priori as the
  conditions of such a constitution。 It is therefore not to be infringed
  by the statutory laws of such a constitution; and accordingly the
  juridical principle remains in force; that; 〃Whoever proceeds upon a
  maxim by which it becomes impossible for me to have an object of the
  exercise of my will as mine; does me a lesion or injury。〃 For a
  civil constitution is only the juridical condition under which every
  one has what is his own merely secured to him; as distinguished from
  its being specially assigned and determined to him。 All guarantee;
  therefore; assumes that everyone to whom a thing is secured is already
  in possession of it as his own。 Hence; prior to the civil
  constitution… or apart from it… an external mine and thine must be
  assumed as possible; and along with it a right to compel everyone with
  whom we could come into any kind of intercourse to enter with us
  into a constitution in which what is mine or thine can be secured。
  There may thus be a possession in expectation or in preparation for
  such a state of security; as can only be established on the law of the
  common will; and as it is therefore in accordance with the possibility
  of such a state; it constitutes a provisory or temporary juridical
  possession; whereas that possession which is found in reality in the
  civil state of society will be a peremptory or guaranteed
  possession。 Prior to entering into this state; for which he is
  naturally prepared; the individual rightfully resists those who will
  not adapt themselves to it; and who would disturb him in his provisory
  possession; because; if the will of all except himself were imposing
  upon him an obligation to withdraw from a certain possession; it would
  still be only a one…sided or unilateral will; and consequently it
  would have just as little legal title… which can be properly based
  only on the universalized will… to contest a claim of right as he
  would have to assert it。 Yet be has the advantage on his side; of
  being in accord with the conditions requisite to the introduction
  and institution of a civil form of society。 In a word; the mode in
  which anything external may be held as one's own in the state of
  nature; is just physical possession with a presumption of right thus
  far in its favour; that by union of the wills of all in a public
  legislation it will be made juridical; and in this expectation it
  holds comparatively; as a kind of potential juridical possession。
  This prerogative of right; as arising from the fact of empirical
  possession; is in accordance with the formula: 〃It is well for those
  who are in possession〃 (Beati possidentes)。 It does not consist in the
  fact that; because the possessor has the presumption of being a
  rightful man; it is unnecessary for him to bring forward proof that he
  possesses a certain thing rightfully; for this position applies only
  to a case of disputed right。 But it is because it accords with the
  postulate of the practical reason; that everyone is invested with
  the faculty of having as his own any external object upon which he has
  exerted his will; and; consequently; all actual possession is a
  state whose rightfulness is established upon that postulate by an
  anterior act of will。 And such an act; if there be no prior possession
  of the same object by another opposed to it; does; therefore;
  provisionally justify and entitle me; according to the law of external
  freedom; to restrain anyone who refuses to enter with me into a
  state of public legal freedom from all pretension to the use of such
  an object。 For such a procedure is requisite; in conformity with the
  postulate of reason; in order to subject to my proper use a thing
  which would otherwise be practically annihilated; as regards all
  proper use of it。
  CH2
  FIRST PART。 PRIVATE RIGHT。
  The System of those Laws Which Require No External Promulgation。
  CHAPTER II。 The Mode of Acquiring Anything External。
  10。 The General Principle of External Acquisition。
  I acquire a thing when I act (efficio) so that it becomes mine。 An
  external thing is originally mine when it is mine even without the
  intervention of a juridical act。 An acquisition is original and
  primary when it is not derived from what another had already made
  his own。
  There is nothing external that is as such originally mine; but
  anything external may be originally acquired when it is an object that
  no other person has yet made his。 A state in which the mine and
  thine are in common cannot be conceived as having been at any time
  original。 Such a state of things would have to be acquired by an
  external juridical act; although there may be an original and common
  possession of an external object。 Even if we think hypothetically of a
  state in which the mine and thine would be originally in common as a
  communio mei et tui originaria; it would still have to be
  distinguished from a primeval communion (communio primaeva) with
  things in common; sometimes supposed to be founded in the first period
  of the relations of right among men; and which could not be regarded
  as based upon principles like the former; but only upon history。
  Even under that condition the historic communio; as a supposed
  primeval community; would always have to be viewed as acquired and
  derivative (communio derivativa)。
  The principle of external acquisition; then; may be expressed
  thus: 〃Whatever I bring under my power according to the law of
  external freedom; of which as an object of my free activity of will
  I have the capability of making use according to the postulate of
  the practical reason; and which I will to become mine in conformity
  with the idea of a possible united common will; is mine。〃
  The practical elements (momenta attendenda) constitutive of the
  process of original acquisition are:
  1。 Prehension or seizure of an object which belongs to no one;
  for; if it belonged already to some one; the act would conflict with
  the freedom of others; that is; according to universal laws。 This is
  the taking possession of an object of my free activity of will in
  space and time; the possession; therefore; into which I thus put
  myself is sensible or physical possession (possessio phenomenon);
  2。 Declaration of the possession of this object by formal
  designation and the act of my freewill in interdicting every other
  person from using it as his;
  3。 Appropriation; as the act; in idea; of an externally
  legislative common will; by which all and each are obliged to
  respect and act in conformity with my act of will。
  The validity of the last element in the process of acquisition; as
  that on which the conclusion that 〃the external object is mine〃 rests;
  is what makes the possession valid as a purely rational and
  juridical possession (possessio noumenon)。 It is founded upon the fact
  that; as all these acts are jur